AS TO THE ADMISSIBILITY OF
Application No. 18249/91
by F. K., T. M. and C. H.
against Austria
The European Commission of Human Rights sitting in private on
2 March 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 May 1991 by F. K.,
T. M. and C. H. against Austria and registered on 23 May 1991 under file
No. 18249/91;
Having regard to the observations submitted by the respondent
Government, after two extensions of the time-limit, on 10 April 1992, and
the observations in reply submitted by the applicants on 10 July 1992,
the applicants' further submissions of 11 January 1994;
Having regard to the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the parties,
may be summarised as follows:
The first applicant, born in 1945, is a Hungarian national and
resident at Zurndorf, Austria. He is a businessman by profession. The
second applicant, born in 1964, is a Hungarian national and resident in
Vienna. He is unemployed. The third applicant, born in 1966, is also a
Hungarian and resident in Vienna. She is also unemployed. The second and
third applicants are life companions. When lodging their application the
applicants were detained on remand in the Prison at the Vienna Regional
Court (landesgerichtliches Gefangenenhaus). In the course of the
proceedings before the Commission, they returned to Hungary.
Before the Commission they are represented by Mr. G. Simonfay, a
lawyer practising in Vienna.
A. The particular circumstances of the case
On 12 September 1990 the Duty Judge (Journalrichter) at the Leoben
Regional Court (Kreisgericht) issued a search warrant concerning, inter
alia, the premises of MM. N., B. and V. as well as of the first applicant
and of Mr. Simonfay. In the reasons of the search warrant, the Judge
noted that the three men N., B. and V. had been apprehended in a burglary
and arrested during the preceding night. An object stolen on the occasion
of a burglary in August 1990 could be seized, but the major part of the
stolen goods with a value of about AS 600,000 had not yet been found.
Further burglaries in the area concerned had not yet been solved. The
Judge assumed that the three suspects, together with unknown accomplices,
had professionally committed burglaries as a gang. He considered that
there was a reasonable suspicion that, in the above-mentioned premises,
stolen goods, tools and other evidence could be found. This suspicion was
corroborated by the fact that the arrested persons had objects stolen on
the occasion of a burglary in August 1990 with them, but the major part
of stolen goods had not yet been found. As these three men had the
addresses, among others, of the first applicant and Mr. Simonfay with
them, their premises had also to be searched for stolen goods.
In the afternoon of 13 September 1990, the search of the first
applicant's premises was carried out. The authorities seized various
watches and other objects as well as documents and credit cards. The
first applicant was brought to the Gattendorf Police Station
(Gendarmerieposten), where he was interrogated by two police officers in
the presence of an interpreter from 20 hrs until 22.45 hrs when he was
arrested.
According to the police records relating to this questioning, he was
shown photographs of the three suspects N., B. and V., and then declared
that he knew B. from the past, and had sold him a car, that B. had taken
over a rented apartment, but that he had never bought anything from B.
Thereupon the first applicant was informed that his questioning was
interrupted for further investigation because of his obviously wrong
statements. He was informed that the Leoben Regional Court had ordered
his arrest. His request to inform his counsel Mr. Simonfay, whose private
telephone number he indicated, was refused on the ground that there was
a court instruction (Gerichtsauftrag) in respect of this person. He could
not name another counsel.
According to a police report of 13 September 1990 concerning the
various searches, nobody could be found at Mr. Simonfay's address as
indicated in the above search warrant, despite several calls. A
door-plate indicated that Mr. Simonfay was a translator and that his
office was situated at the given address. Apparently there were no
further investigations against him.
On 14 September 1990, from 21.30 hrs until 23.15 hrs, and on
15 September 1990, from 19 hrs until 21 hrs, the first applicant was
further questioned by police officers in the presence of an interpreter,
in particular upon the suspicion of having been involved in a further
burglary in September 1990 and of having received stolen goods from B.
He stated that he had bought the jewellery for relatives, and denied any
involvement in the criminal offences concerned.
On 15 September 1990, at 21.45 hrs, the first applicant was
committed to the Prison at the Eisenstadt Regional Court. On 17 September
1990 the Eisenstadt Regional Court, upon the request of the Eisenstadt
Public Prosecutor's Office (Staatsanwaltschaft) of the same day,
transferred the proceedings to the Leoben Regional Court and ordered the
applicant's transfer to the Prison at the Leoben Regional Court. In the
morning of 18 September 1990, the applicant was committed to the Prison
at the Leoben Regional Court.
On 19 September 1990, at 9.15 hrs, the first applicant was heard by
the Investigating Judge at the Leoben Regional Court on the suspicion
that he had professionally committed burglaries. The Judge decided that
preliminary investigations be instituted against the first applicant and
that he be detained on remand in accordance with S. 180 para. 2 of the
Code of Criminal Procedure (Strafprozeßordnung), namely for danger of
collusion, committing further offences and absconding. The Judge found
in particular that, having regard to the investigations, there was a
reasonable suspicion that the first applicant, as a member of a gang of
thieves, had participated in burglaries in jewellers' shops. Being a
Hungarian national, he would probably evade prosecution in Austria.
Furthermore, accomplices were still at liberty. Taking the numerous
offences into account, there was also a risk that the first applicant
would commit further offences. The first applicant lodged an appeal
(Beschwerde).
On 21 September 1990 the premises of the second applicant and the
third applicant were searched on the basis of a search warrant issued by
the Leoben Regional Court on 18 September 1990. The search warrant was
based on the suspicion that the second applicant had received stolen
goods in connection with the above burglaries. Both applicants were
arrested in the evening of 21 September 1990 and detained in the Prison
at the Vienna Regional Court. They were questioned by police authorities
on 22 September 1990, and the third applicant again on 23 September 1990.
The third applicant made detailed submissions. The second and third
applicants were transferred to the Prison at the Vienna Regional Court
on 23 September 1990. The Duty Judge at the Vienna Regional Court
informed the Investigating Judge at the Leoben Regional Court about the
arrests. As by then no warrants of arrest had been issued against the
second and the third applicant, they were released on 25 September 1990.
Later, on 25 September 1990, the Investigating Judge at the Leoben
Regional Court issued warrants of arrest against the second and the third
applicant. He found in particular that there was a reasonable suspicion
that both applicants had professionally received stolen goods stemming
from burglaries in jewellers' shops. It could not be excluded that they
themselves were involved in the burglaries. Having regard to their
Hungarian nationality and the lack of integration in Austria, there was
a risk that they would abscond. Furthermore, as numerous witnesses still
had to be heard, there was a risk of collusion. In view of the great
number of offences, there was also a risk of repetition. The
Investigating Judge further noted that warrants of arrest were necessary
although the applicants had already once be arrested on 21 September
1990, at 18 hrs, on the ground that, contrary to the submissions of the
police authorities concerned he had not been requested to issue warrants
of arrest, but had only been seized with the case on 25 September 1990
by an oral request of the Leoben Public Prosecutor's Office. At that
time, the applicants therefore had to be released.
The second and the third applicant were again arrested in Vienna on
26 September 1990, at 12.30 hrs. On 27 September 1990, at 13 hrs, they
were transferred to the Prison at the Vienna Regional Court.
On 27 September 1990, the Judges' Chamber (Ratskammer) at the Leoben
Regional Court, after a hearing on the question of the first applicant's
release (Haftprüfungsverhandlung) in the presence of the first applicant
and an interpreter, ordered the first applicant's continued detention on
remand. The Regional Court found in particular that there was a
reasonable suspicion that the first applicant had received stolen goods
and been a member of a gang of thieves. The investigations against him
related in particular to an attempted burglary in Kindstatt and, two
further burglaries at Mürzzuschlag and St. Peter. Furthermore, numerous
number-plates had been found at the first applicant's premises which
obviously were used in the course of smuggling cars. However, the
investigations had not yet produced any clear results in this respect.
Having regard to the first applicant's Hungarian nationality, there was
a danger that he would abscond. Moreover, the investigations had not yet
been completed, and, having regard to his denial of any criminal offence,
there was danger of collusion in that the first applicant might influence
accomplices not yet arrested. Finally, taking the various criminal acts
into account, there was a risk that the first applicant, notwithstanding
the criminal proceedings pending against him, would commit further
offences. The first applicant waived his right to appeal.
On 28 September 1990 the second and the third applicant were
independently questioned by the Duty Judge at the Vienna Regional Court
upon a request of the Leoben Regional Court. They were informed that they
had been arrested on the basis of a warrant of arrest issued by the
Leoben Regional Court and that they to remain in provisional custody
(Verwahrungshaft) until the Investigating Judge at the Leoben Regional
Court had decided upon the matter. On 1 October 1990 the Duty Judge
informed them that the competent Judge at the Leoben Regional Court had
decided that preliminary investigations be instituted against them and
that they be taken into detention on remand on the suspicion of having
received stolen goods. The written copies of these decisions dated
1 October 1990 were handed over to both applicants on 2 October 1990.
Thereupon, they waived their right to appeal.
In the beginning of October 1990 the first applicant's relatives
informed Mr. Simonfay who then visited the first applicant in prison on
5 October 1990. They discussed the proceedings, and the first applicant
gave him power of attorney. On 10 October 1990 the second and the third
applicant also gave Mr. Simonfay power of attorney.
On 9 October 1990 the first applicant, represented by Mr. Simonfay,
requested the Leoben Regional Court to permit him to inspect the files
relating to the criminal proceedings against him. The second and third
applicant, also represented by Mr. Simonfay, did so on 10 October 1990.
On 23 October 1990 the Investigating Judge at the Leoben Regional
Court permitted the applicants' defence counsel to inspect the files
except the folder, the table of contents, the sheet relating to requests
and orders, the records concerning the questioning of the suspects as
well as further pages enumerated in the decision. Any item subsequently
filed required a new decision. To the extent that inspection was
permitted, the files could be copied. The Investigating Judge observed
in particular that until indictment single documents in the files could
be excluded from inspection by counsel, if in the particular
circumstances an immediate information thereof was likely to hinder the
investigations. In the present case, various investigations still had to
be completed and full knowledge of the files was capable of endangering
essential parts of the preliminary investigations.
On 30 October 1990 the first applicant, represented by Mr. Simonfay,
lodged an appeal with the Leoben Regional Court concerning the refusal
to consult counsel on 13 September 1990.
On 9 November 1990 the Judges' Chamber at the Leoben Regional Court
dismissed the first applicant's appeal. The Judges' Chamber noted in
particular that the first applicant, in the course of the questioning on
13 September 1990, had given a wrong telephone number of Mr. Simonfay;
furthermore, at the time in question, Mr. Simonfay had not yet been given
power of attorney. In the files there was no indication that the
Investigating Judge at the Leoben Regional Court had decided and given
instructions that the first applicant should not have the right to
consult his counsel on the ground of doubts as to this counsel. In
accordance with S. 12 para. 1 of the Code of Criminal Procedure the
Judges' Chamber was only competent to review court measures taken in the
course of the preliminary investigations not, however, to examine
incidents in the course of questioning by police authorities, such as
legal instructions given to an arrested person by police officers. The
decision was served on 14 November 1990.
On 15 November 1990 the first applicant applied for release from
detention on remand and requested that his counsel be authorised to
inspect all documents in the files concerning the preliminary
investigations against him. Furthermore, the second applicant filed a
request for full access to the file.
On 26 November 1990 the Investigating Judge decided to permit the
applicant's counsel to inspect further items in the files, data
concerning police informers and an interim report were excluded from the
inspection.
On 29 November 1990 the Judges' Chamber at the Leoben Regional
Court, assuming a danger of collusion, conducted separate hearings on the
question of the first and the third applicant's and other suspects'
release in the presence of the suspects, interpreters and the respective
counsels. Subsequent to the hearings, it ordered inter alia the first and
the third applicant's continued detention on remand.
As regards the first applicant, the Judges' Chamber found in
particular that, considering the results of the extensive and difficult
police investigations, there was a reasonable suspicion that the first
applicant had received stolen goods and was a member of a foreign gang
of thieves, some of its members having absconded. In the course of the
investigations jewellery of a considerable quantity had been found at his
premises. The gang concerned was reasonably suspected of having
repeatedly and professionally broken into various jewellers' shops in
Austria, and caused an overall damage of seven million AS. The Judges'
Chamber referred in particular to seven burglaries, and noted that there
was a suspicion of various other burglaries having been committed in
Austria and abroad. Furthermore, there was a reasonable suspicion that
the first applicant was the main figure in passing on stolen and partly
forged credit cards originating mostly in Hungary. He was also suspected
of having transferred stolen cars to Hungary. The completion of the
latter investigations was not yet in sight. The Judges' Chamber further
considered that, taking a possible sentence of more than five years'
imprisonment into account, there was a danger of absconding. It was also
likely that, being released, the applicant would commit further serious
criminal offences.
As regards the third applicant, the Judges' Chamber found in
particular that, considering the results of the extensive and difficult
police investigations, there was a reasonable suspicion that the third
applicant, as an accomplice of other suspects some of whom had absconded,
had repeatedly and professionally committed various burglaries in
Austria, and caused an overall damage of seven million AS. Furthermore,
there was a reasonable suspicion that she had participated in burglaries
relating to perfumeries and in offences concerning credit cards. At her
and the second applicant's premises in Vienna, stolen goods had been
found. She was also suspected of having sold the stolen goods in Hungary.
In respect of two burglaries, witnesses had declared to have recognised
the third applicant. The Judges' Chamber further considered that, taking
a possible sentence of more than five years' imprisonment into account,
there was a danger that the third applicant would abscond. It was also
likely that, being released, she would commit further serious criminal
offences.
As both applicants lodged appeals upon pronouncement of the
decision, the Judges' Chamber finally noted in both decisions that it
would await the written reasons for the appeal and then send the files
to the Graz Court of Appeal.
On 10 and 11 December 1990 the first and the third applicant,
respectively, both assisted by Mr. Simonfay, submitted their reasons with
regard to their appeals against the decisions of 29 November 1990
refusing their release from detention on remand.
On 13 December 1990 the Judges' Chamber at the Leoben Regional Court
conducted a hearing on the question of the second applicant's release in
the presence of the applicant assisted by his counsel. Subsequent to the
hearing, it ordered the second applicant's continued detention on remand.
The Judges' Chamber found in particular that, considering the results of
the extensive and difficult police investigations, there was a reasonable
suspicion that the second applicant, as a member of a gang of mostly
Hungarian nationals, had repeatedly and professionally committed
burglaries at various places in Austria, and caused an overall damage of
several millions of Austrian shillings. He had also committed criminal
offences in respect of forged credit cards. Having regard to the
testimony of witnesses there was a suspicion of various other offences;
however, comprehensive charges could not be laid before the end of
January 1991 at the earliest. The Judges' Chamber considered that a
witness had identified the applicant as the accomplice of one particular
burglary. Taking the possible sentence of more than five years'
imprisonment into account, there was a danger that the second applicant
would abscond. There were various discrepancies in his statements which
required clarification. It was also likely that, being released, he would
commit further serious criminal offences. As the applicant lodged an
appeal upon pronouncement of the decision, the Judges' Chamber finally
noted that it would await the written reasons for the appeal and then
send the files to the Graz Court of Appeal.
On 19 December 1990 the second applicant, assisted by Mr. Simonfay,
submitted his reasons with regard to his appeal against the decision of
13 December 1990 refusing his release from detention on remand. The copy
of a post-receipt dated 19 December 1990 was joined to the application.
On 27 December 1990 the Graz Court of Appeal dismissed the first and
third applicants' appeals against the decisions of 29 November 1990. The
Court of Appeal found in particular that, considering the contents of the
files, the statements of the first applicant and the result of the
investigations so far, there was a reasonable suspicion that they had
committed the offences as stated in the decisions in question. The Court
of Appeal noted that the third applicant had not yet been heard by the
Investigating Judge at the Leoben Regional Court.
On 10 January 1991 the Graz Court of Appeal dismissed the second
applicant's appeal against the decision of 13 December 1990. The Court
of Appeal observed that the second applicant had failed to file reasons
for his appeal. It confirmed the reasoning of the Judges' Chamber.
On 25 January 1991 the Post Office of Vienna 1014 informed counsel
Mr. Simonfay that a letter dated 19 December 1990 and addressed to the
Leoben Regional Court, as indicated in the post-receipt of the same date,
had been duly delivered.
On 21 March 1991 the Vienna Court of Appeal decided that the three
applicants' and other suspects' detention on remand may last up to one
year. The Court of Appeal noted that the Vienna Regional Court conducted
preliminary investigations against the persons concerned on the suspicion
of professional grave burglary and other offences. Having regard to the
extensive police investigations, there was a reasonable suspicion that
as from summer 1989 they had as members of a gang of mostly Hungarian
nationals committed numerous burglaries in Austria and abroad. The Court
of Appeal, referring in particular to seven cases, also noted that the
damage caused amounted to about fifteen million AS. It considered that
the investigations were particularly difficult and extensive due to the
complexity of the facts and the number of suspects. The fact that the
previous period of the first applicant's and other suspects' detention
on remand had already expired at the time of its decision did not hinder
the prolongation.
Permission further to inspect the files was granted on 15 and
16 April 1991.
On 19 September 1991 the Vienna Court of Appeal decided that the
detention on remand regarding the first and the second applicant could
last up to fifteen months.
On 30 October 1991 the Vienna Public Prosecutor's Office preferred
the indictment against the applicants, which was served upon them in
November 1991.
The trial against the applicants was held before the Vienna Regional
Court between 30 March and 10 April 1992. At that stage of the
proceedings, Mr. Simonfay did no longer act as their defence counsel.
Following the trial, the Vienna Regional Court convicted the the first
and second applicant, presumably also the third applicant, of having
committed burglary on various counts, and imposed prison sentences.
Having served their sentences, the applicants returned to Hungary.
B. Relevant domestic law
According to S. 12 para. 1 of the Code of Criminal Procedure
(Strafprozeßordnung) all measures taken by a district court
(Bezirksgericht) or the investigating judge (Untersuchungsrichter) at the
first instance court in the course of preliminary investigations are
supervised by the Judges' Chamber (Ratskammer) at the first instance
court.
S. 39 para. 1 of the Code of Criminal Procedure provides that in all
criminal cases the suspect (der Beschuldigte) has the right to have a
defence counsel whom he may choose among the persons included in a list
kept by the Court of Appeal. According to S. 43 several persons who are
suspected or accused at the same time may have a common defence counsel.
S. 45 para. 1 of the Code of Criminal Procedure provides that also
in the course of the preliminary investigations (Vorerhebungen und
Voruntersuchung) the suspect has the right to choose a defence counsel
in order to ensure his rights as regards the court files, which directly
concern the establishment of facts and cannot be exercised at a later
stage, furthermore in order to file particular appeals lodged by him.
According to S. 45 para. 2, first sentence, the investigating judge shall
permit the defence counsel on request to inspect the court files, except
the records of deliberations, on the premises of the court, and to make
copies thereof; alternatively the investigating judge may also deliver
photocopies to the counsel.
Under S. 45 para. 2, third sentence, the investigating judge may,
until communication of the indictment (Mitteilung der Anklageschrift),
exempt single documents from inspection and copying, if, in the
particular circumstances, there is a risk that direct cognizance of these
documents could hinder the investigations.
SS. 84 to 115 of the Code of Criminal Procedure concern the
preliminary investigations (Vorerhebungen und Voruntersuchung).
According to S. 91 para. 1, the committal for trial (Versetzung in
den Anklagestand) must be preceded by a preliminary investigation
(Voruntersuchung) where the case concerns a crime or a criminal offence
coming within the competence of the Assize Court (Geschworenengericht)
or if proceedings are instituted in absentia. In all other cases the
public prosecutor or the private prosecutor may request a preliminary
investigation. S. 91 para. 2 provides that the preliminary investigation
pursues the aim of provisionally examining the criminal charges laid
against a person and of establishing the facts to the extent necessary
to decide whether to discontinue the criminal proceedings or to commit
for trial and prepare the taking of evidence at the trial. According to
S. 93 para. 1 the preliminary investigations are in general conducted by
the investigating judge personally and directly.
S. 113 provides in particular that anybody affected by a decision
of the investigating judge or a delay in the course of preliminary
investigations or the proceedings after the indictment, may apply for
review by the judges' chamber, which decides in private after having
heard the investigating judge and the public prosecutor. According to S.
114 there is a further appeal against decisions of the judges' chamber
to the court of second instance, if these decisions concern the
separation of proceedings, the institution or discontinuation of the
preliminary investigation, bail, or detention on remand without a hearing
concerning release having taken place. The appeal has to be filed with
the presiding judge of the judges' chamber within fourteen days after
pronouncement of the decision concerned.
SS. 139 to 149 concern the search of premises and persons and the
seizure of objects. S. 139 para. 1 provides in particular that a search
may only be carried out if there is a reasonable suspicion that on the
premises concerned a person suspected of having committed a crime or
other criminal offence is hiding, or that there are objects the
possession or examination of which is relevant for a particular criminal
investigation.
According to S. 175 para. 1 the investigating judge may order that
a suspect be brought before the court (Vorführung) or be provisionally
detained (vorläufige Verwahrung), in particular if the suspect was
apprehended in or shortly after the commission of a criminal offence, if
he has absconded or if there is a risk of his absconding, of collusion
or of repetition of the offences. In such cases the investigating judge
has to issue a written warrant of arrest which has to be served upon the
suspect at his arrest or within the following twenty-four hours (S. 176
para. 1).
S. 177 provides that exceptionally provisional detention of a
suspect may be ordered orally by a judge not competent for the case or
by the police authorities (Sicherheitsbehörden), where the suspect was
apprehended in or shortly after the commission of a criminal offence, or
where, in cases of a risk of his absconding, of collusion or of
repetition of offences, there is imminent danger (Gefahr im Verzug). The
person provisionally detained must be questioned without delay by the
judge or the police authorities and, in the absence of a reason
justifying his further detention, be released, or be transferred to the
competent court within forty-eight hours.
S. 179 para. 1 states that any suspect transferred to the court or
brought before the court upon an order of the investigating judge must
be questioned by the investigating judge within twenty-four hours. If
this is not possible, the suspect may remain in provisional detention;
however, his questioning must begin as soon as possible, the latest at
the expiry of three days, and the reasons why he was not questioned
earlier have to be recorded. According to S. 179 para. 2, first sentence,
the investigating judge, having questioned the suspect, must immediately
decide upon his release or his detention on remand (Untersuchungshaft).
According to Austrian case-law, the above time-limits start to run upon
transfer of the suspect to the competent court.
Under S. 180 paras. 1 and 2 a person may be held in detention on
remand if he is seriously suspected of having committed a criminal
offence and if there is a risk of his absconding, of collusion or of
repetition of offences. According to S. 193, detention may not last more
than two months where its sole justification is the risk of collusion;
it may not last more than six months where one of the other grounds is
relied on. The court of appeal may, however, if so requested by the
investigating judge or the public prosecutor and if the difficulty or the
scope of the investigations makes it necessary, extend the detention. In
such cases the maximum duration of detention is three months where the
measure is based on a risk of collusion alone, and one year, or even two
years, if the term of imprisonment which the suspect risks is ten years
or more, in the other circumstances provided for.
By virtue of SS. 194 and 195, it is open to the suspect to apply for
release at any time. Such an application and any appeal against a
decision ordering detention on remand must be examined by the Judges'
Chamber at a private hearing in the presence of the accused or his
defence counsel.
COMPLAINTS
1. The applicants complain under Article 5 para. 3 of the Convention
that, after their respective arrests, they were not brought promptly
before a judge.
2. The applicants further complain under Article 5 para. 4 and Article
6 paras. 1 and 3 of the Convention that, at the initial stage of the
criminal proceedings against them, they were not afforded the guarantees
of a judicial procedure for the purposes of the Convention.
The first applicant submits that upon his arrest on 13 September
1990 he was refused to consult his defence counsel, and that
subsequently, for a period of 23 days, he was not assisted by defence
counsel. At this important stage of the proceedings, which comprised the
initial decisions concerning his arrest, provisional detention and
detention on remand as well as the hearing concerning the question of his
release, he could not duly exercise his rights of defence.
Moreover, all applicants complain that their counsel was not duly
granted access to all documents in the court files concerning the
criminal proceedings against them. They consider that the exclusion from
inspection of documents concerning evidence against them prevented them
properly to prepare and present their arguments at the respective
hearings concerning the question of their release.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 May and registered on
23 May 1991.
On 2 December 1991 the Commission decided to communicate the
application to the respondent Government for written observations on its
admissibility and merits.
After two extensions of the time-limit, observations were submitted
by the Government on 10 April 1992. The applicant submitted observations
in reply on 10 July 1992, and made further submissions on
11 January 1994.
THE LAW
1. The applicants complain under Article 5 para. 3 (Art. 5-3) of the
Convention that, after their respective arrests, they were not brought
promptly before a judge.
The Government submit that the time-limits under the relevant
provisions of the Austrian Code of Criminal Procedure, as interpreted by
the Austrian courts, were respected. They also consider that the
applicants were brought promptly before a judge within the meaning of
Article 5 para. 3 (Art. 5-3). In particular, the first applicant had to
be questioned by the police authorities on 14 and 15 September 1990.
Following his transfer from the prison at the Eisenstadt Regional Court
to the prison at the competent Leoben Regional Court where he arrived on
18 September 1990, he was brought before the competent Investigating
Judge within less than twenty-four hours. As regards the second and the
third applicant, the Government state that, after their arrest on 26
September 1990, they were brought promptly before the Investigating Judge
at the Vienna Regional Court on 28 September 1990.
The applicants submit that the transfer of arrested persons from one
prison to another could not justify delays in bringing them before a
judge competent to decide upon their continued detention or release.
Furthermore, the questioning of the second and the third applicant by the
Duty Judge at the Vienna Regional Court were only of a formal nature and
did not suffice for the purposes of Article 5 para. 3 (Art. 5-3). The
information passed on to the Investigating Judge at the Leoben Regional
Court, who was competent to decide upon their detention on remand or
release, was inadequate.
The Commission finds that the applicants' complaints under Article 5
para. 3 (Art. 5-3) of the Convention that, after their respective
arrests, they were not promptly brought before a judge raise difficult
questions of fact and of law which require an examination of the merits.
No other ground for declaring it inadmissible has been established.
2. The applicants further complain that the proceedings available to
them for a review of the lawfulness of their arrest and detention on
remand did not meet the requirements of Article 5 para. 4 (Art. 5-4) of
the Convention. They also invoke Article 6 (Art. 6) of the Convention in
respect of the criminal proceedings as a whole.
a. The first applicant complains that, upon his arrest on 13 September
1990, he was refused to consult his defence counsel, and that
subsequently he was not assisted by defence counsel until 5 October 1990.
He submits that, at this important stage of the proceedings, which
comprised the initial decisions concerning his arrest, provisional
detention and detention on remand, he could not duly exercise his rights
of defence.
The Government maintain that the first applicant failed to exhaust
domestic remedies, as required by Article 26 (Art. 26) of the Convention.
They submit that the applicant, after his committal to prison, could have
again asked for assistance by counsel. Had assistance again been refused
he could have lodged a complaint with the Judges' Chamber under S. 113
of the Code of Criminal Procedure. In any event, the first applicant was
granted the benefit of an adversarial procedure, as required by Article
5 para. 4 (Art. 5-4) of the Convention, on the occasion of the review
proceedings before the Judges' Chamber at the Leoben Regional Court on
27 September 1990.
Pursuant to Article 26 (Art. 26) of the Convention, the Commission
may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law. The basis of this rule is that, before proceedings are brought in
an international court, the respondent State must have had an opportunity
to redress the alleged damage by domestic means within the framework of
its own legal system (cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).
The Commission notes that on 13 September 1990 the Police Officers
at the Gattendorf Police Station refused the first applicant's request
to contact Mr. Simonfay as his defence counsel stating that criminal
inquiries were pending against Mr. Simonfay. According to the police
records, the first applicant was to name another counsel. The first
applicant, having obtained assistance by a defence counsel in the
beginning of October 1990, lodged an appeal with the Judges' Chamber on
30 October 1990. The appeal was dismissed on the grounds that the
applicant, upon his arrest, had indicated a wrong telephone number, that
he had not yet given counsel power of attorney and that, in any way, it
was not competent to review instructions given by the police authorities.
The Commission finds that there is no indication that this remedy
was clearly ineffective. The other possibilities referred to by the
Government cannot, for the purposes of Article 26 (Art. 26) of the
Convention, be regarded as effective remedies, as a considerable loss of
time could not be excluded and the lack of assistance at the initial
stage of the proceedings would not have been redressed.
The first applicant must therefore be considered as having
exhausted, as required under Article 26 (Art. 26) of the Convention, the
domestic remedies available to him at this stage of the proceedings.
b. All applicants complain that their counsel was not duly granted
access to all documents in the court files concerning the criminal
proceedings against them.
The Government contend that the applicants failed to exhaust the
domestic remedies, as required under Article 26 (Art. 26) of the
Convention. They point out that the second and third applicant did not
use any remedy against the decision of the Investigating Judge only to
grant limited access. Moreover, the first applicant, whose appeal was
inadvertently not forwarded by the Investigating Judge, failed to insist
on a decision by the Judges' Chamber at the Leoben Regional Court.
According to the Government, these complaints are also manifestly
ill-founded. Access to the file was essentially only restricted as
regards the records and notes taken in the course of the interrogations
of the other suspects. Such a measure was necessary to prevent the
applicants from conceiving their respective defence strategies on those
of the other accused. Furthermore, knowledge of the documents concerned
was not necessary to challenge the lawfulness of the applicants'
detention on remand.
The applicants contest the Government's assertion as to the
exhaustion of domestic remedies. Furthermore, they submit that the
exclusion from inspection of important documents concerning evidence
against them prevented them properly to prepare and present their
arguments at the respective hearings concerning the question of their
release.
The Commission notes that on 23 October 1990 the Investigating Judge
at the Leoben Regional Court permitted the applicants' defence counsel
to inspect the criminal files except the folder, the table of contents,
the sheet relating to requests and orders, the records concerning the
questioning of the suspects as well as further pages enumerated in the
decision.
The first applicant, represented by Mr. Simonfay, who was at the
same time the defence counsel of the other applicants, lodged an appeal
against the decision of 23 October 1990 and, on 15 November 1990, again
requested that his defence counsel be authorised to inspect all documents
in the files. On 26 November 1990 the Investigating Judge only permitted
access to two further items in the files. No decision on the appeal
regarding access to the complete files was taken before the applicants'
hearings on the question of their release from detention on remand on
29 November and 13 December 1990, respectively.
The Commission, having regard to the failure of the Austrian
authorities to decide upon the first applicant's appeal and further the
short lapse of time between the challenged decisions on access to the
files and the respective hearings to review the applicants' detention on
remand, finds that no effective remedy was available to the applicants
to complain about the restrictions on their access to the criminal files.
In these circumstances, the Commission considers that the
applicants' complaints about the restrictions on their access to the
files in the course of the investigation proceedings cannot be rejected
for non-exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.
c. The Commission finds that the applicants' complaints that, at the
initial stage of the proceedings, they were not afforded the guarantees
of a judicial procedure for the purposes of the Convention, raise
difficult questions of fact and of law, which require an examination of
the merits. No other ground for declaring it inadmissible has been
established.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy